DR.

BHIMRAO AMBEDKAR LAW UNIVERSITY, JAIPUR

Individual Liberty and Public Morality in the Light of Naz

Foundation Case by Delhi HC

In the guidance of Ms .Swati Chajjlani

- Diksha Goyal, Roll no 8

LLM Batch, 2020-2021

TABLE OF CONTENTS

Table of Contents.......................................................................................................................2

1
Acknowledgement......................................................................................................................3
Introduction................................................................................................................................4
Naz Foundation Case.................................................................................................................5
The Rejection of Public Morality as Valid Justification To Trample Individual Rights...........5
The Uniqueness of Naz Foundation Formulation: Constitutional Morality..............................7
Conclusion..................................................................................................................................9
Bibliography.............................................................................................................................10
 Statutes:..................................................................................................................10
 Cases:.....................................................................................................................10
 Books:....................................................................................................................10
 Articles:..................................................................................................................10

2
 ACKNOWLEDGEMENT

First and foremost, praises and thanks to the God, the Almighty, for his shower of blessings
throughout my research work to complete the research successfully.
I would like to express my sincere gratitude to Ms. Swati Chajjlani, Guest professor, Dr. B R
Ambedkar Law University, for giving me the opportunity to do research and providing
invaluable guidance throughout this research project. His dynamism, vision, knowledge,
sincerity, sense of humor and motivation have deeply inspired me. It was a great privilege
and honor to work and study under his guidance.
I owe my deepest gratitude to the entire faculty of law, DR. B.R. Ambedkar Law University,
Hon’ble Vice Chancellor Dr. Dev Swarup, and Prof. Mridul Srivastava), for the academic
support and facilities provided to carry out research work at the University. No research is
possible without the resources of library. I am grateful to the service rendered by the staff at
the DR. B.R Ambedkar Law University.

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 INTRODUCTION

Moral indignation, howsoever strong, is not a valid basis for overriding individuals'
fundamental rights of dignity and privacy. In our scheme of things, constitutional morality
must outweigh the argument of public morality, even if it be the majoritarian view.
A.P. Shah, Chief Justice, Delhi High Court
Naz Foundation v. Government of NCT of Delhi (2009)

Terms like morality are always shrouded in uncertainty. Quite simply, the term means
different things to different people at different times. This confusion permeates into law, as it
is often argued that law and morality are deeply inter-twined, each borrowing from the other. 1
Constitutions, particularly the Bill of Rights, embody the preference of certain moral values
over others. According to Dworkin, most contemporary constitutions declare individual rights
assailable against the government in a broad and abstract manner, and so, when judges are
called upon to decide a controversial constitutional issue, they must decide how an abstract
moral principle is best understood, and to do that, they must read the Constitution morally.2

A bare perusal of the Fundamental Rights chapter demonstrates the use of terms that, though
abstract, embrace certain moral values like equality, non-discrimination and liberty. 3 In being
value-laden and abstract, these provisions have been able to evolve with the society whose
goals they aim to serve, courtesy the interpretations given to them by the constitutional
courts. In this regard, the observations made by the Supreme Court in I.R. Coelho v. State of
Tamil Nadu,4 that the constitution is a ‘living document’ whose “interpretation may change as
the time and circumstances change to keep pace with it” 5 are particularly apt. This living
nature is crucial. It is believed that while there is certainly an overlap between the moral
values of society in general6 and those reflected in the Constitution, the two do not run along
the same line. It is argued that, where the two diverge, the Courts must give precedence to the
values reflected in the Constitution while adjudicating upon the rights guaranteed under the
Constitution.

1
See generally: H.L Concept of Law (1961) The Morality of Law (1964). See: Tony Honore, The Dependence
of Morality on Law, 13 Oxford Journal Of Legal Studies 1 (1993).
2
Ronald Dworkin, The Moral Reading of the Constitution, The New York Review of Books, (March 21, 1996),
http://www.nybooks.com/articles/1996/03/21/the-moral-reading-of-the-constitution/
3
Vikram Aditya Narayan, Matters of Morality, CALQ (2016) Vol. 3.1
http://docs.manupatra.in/newsline/articles/Upload/C3EC5295-0D4E-41F1-9CF3-1FB4B1AE759F.1-
a__constitution.pdf
4
(2007) 2 S.C.C. 1 (India)
5
Id.
6

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 NAZ FOUNDATION CASE

In Naz Foundation v. Government of NCT,7 (hereinafter “Naz Foundation” or “Naz”) the

Delhi High Court declared that Section 377 8insofar as it criminalized consensual sexual acts
of adults in private, violated Articles 21, 14 and 15 9 of the Constitution. 10 Although this
judgment is significant for multiple reasons,11 for the purpose of this Article, I have limited
my focus to tracing the manner in which the Court dealt with the arguments advanced before
it to come to a conclusion that ‘morality’ must be interpreted as “constitutional morality”.

THE REJECTION OF PUBLIC MORALITY AS VALID JUSTIFICATION TO TRAMPLE

INDIVIDUAL RIGHTS

While considering the constitutionality of Section 377 of the Indian Penal Code (hereinafter
“IPC”), 18605 , the Delhi High Court was confronted with an argument of the Union of India
12
that Indian society is yet to demonstrate readiness or willingness to show greater tolerance
to practices of homosexuality. Thus, it was contended that law cannot run separately from the
society since it only reflects the perception of the society.

Before dealing with this argument, the Court embarked on a discussion of the concepts of
‘personal liberty’ and ‘privacy’ under Article 21, and concluded that Section 377 IPC denies
a person’s dignity and criminalises his or her core identity solely on account of his or her
sexuality and thus violates Article 21 of the Constitution. Having stated that, the Court related
the legal analysis at hand to the judgment in Gobind v. State of M.P.13 which held that
“fundamental rights explicitly guaranteed to a citizen have penumbral zones”. It also went
ahead to find that the right to privacy under Article 21 could not be curtailed except for a
“compelling state interest” and that public morality did not amount to such a “compelling
state interest”.14

7
2009 (111) DRJ 1 (DB)
8
Section 377, Indian Penal Code, 1860.
9
Note that the judgement did not hold that Section 377 violated Article 19. This is important as “morality” is
expressly provided as a reasonable restriction under Articles 19(2) and 19(4), however the Court assessed
morality as a restriction to the right guaranteed under Article 21.
10
Naz Foundation v. Government of NCT, 2009 (111) DRJ 1 (DB) ¶ 132.A (India)
11
See, Arvind Narrain, A New Language of Morality: From the Trial of Nowshirwan to the Judgment in Naz
Foundation, 4 Indian J. Const. L, 84-104 (2010) (highlighting some of the most important features of the
judgement, note 24 at 100)
12
As represented by the Ministry of Home Affairs. This is significant because the Union of India was also
represented by the Ministry of Health and Family Welfare, which, rather curiously, took a completely
contradictory stand to that of the Ministry of Home Affairs.
13
Gobind v. State of Madhya Pradesh, (1975) 2 S.C.C. 148 (India)
14
Id., ¶ 31. It is interesting to see that in Gobind, the Court wanted to place a restriction on fundamental rights by
subjecting them to a compelling state interest. In Naz Foundation, however, this test is used in the converse
manner, to hold that fundamental rights cannot be encroached upon except for a compelling state interest.

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The Gobind test, described as the ‘compelling state interest’ test in Naz Foundation, became
the touchstone on which the Court drew a distinction between ‘public morality’ and
‘constitutional morality’. It rejected the Union of India’s argument and held that:15

“[E]nforcement of public morality does not amount to a ‘compelling state

interest’ to justify invasion of the zone of privacy of adult homosexuals
engaged in consensual sex in private without intending to cause harm to
each other or others….

[P]opular morality or public disapproval of certain acts is not a valid

justification for restriction of the fundamental rights under Article 21.
Popular morality, as distinct from a constitutional morality derived from
constitutional values, is based on shifting and subjective notions of right
and wrong. If there is any type of ‘morality’ that can pass the test of
compelling state interest, it must be ‘constitutional’ morality and not public
morality.”

The complete rejection of ‘public morality’ as a possible justification on the ground that it is
based on shifting and subjective notions of right and wrong is the most significant aspect of
this Judgment, as it seemingly marks a divergence from the prior line of reasoning on the
importance of public morality. However, this writer contends that Naz Foundation does not
reject the concept of public morality per se, but rather, it fine-tunes it to develop a
constitutional morality.

It further relied on Lawrence v Texas16 which held that moral disapproval is not by itself a
legitimate state interest, and Dudgeon v UK17 and Norris v republic of Ireland18 which held
that there was no “pressing social need” to criminalize homosexual acts between consenting
adults. The fact that public morality was not taken as a sufficient ground to restrict the rights
of the individuals to act freely runs common through these judgments. Accordingly, the Delhi
HC held in broad terms that “popular morality or public disapproval of certain acts is not a
valid justification for restriction of the fundamental rights under Article 21.19

Describing popular morality as based on shifting and subjecting notions of right and wrong
and constitutional morality as derived from “constitutional values”, the court held that “if
there is any type of ‘morality’ that can pass the test of compelling state interest, it must be
‘constitutional’ morality and not public morality.”20 After placing reliance on Dr. Ambedkar’s
speech in the Constituent Assembly Debates wherein he had used this phrase, the Court held
as follows:

15
Supra note 7, ¶ 75, 79
16
539 US 558 (2003).
17
45 ECHR (Ser. A) (1981).
18
142 ECHR (Ser. A) (1988).
19
Naz Foundation v Govt of NCT Delhi & Ors 160 (2009) DLT 277 ¶ 79 (India)
20
Ibid.

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The Fundamental Rights, therefore, were to foster the social revolution by creating a society
egalitarian to the extent that all citizens were to be equally free from coercion or restriction
by the state, or by society privately; liberty was no longer to be the privilege of the few. The
Constitution recognizes, protects and celebrates diversity21.

The Court then referred to The National Coalition for Gay and Lesbian Equality v. The
Minister of Justice22 wherein it was unequivocally stated that the “dictates of morality” that
the State can enforce “are to be found in the text and spirit of the Constitution itself”. This
statement, coupled with the description of constitutional morality that is derived from
constitutional values, indicates how one is to go about identifying this kind of morality. The
emphasis on the “values” and the “spirit” of the Constitution suggests that the confines of this
kind of morality are outlined by Parts III and IV of the Constitution. Finally, the Court held
that “if there is one constitutional tenet that can be said to be (the) underlying theme of the
Indian Constitution, it is that of “inclusiveness”.23

THE UNIQUENESS OF NAZ FOUNDATION FORMULATION: CONSTITUTIONAL

MORALITY

The beauty of Naz Foundation, and this is the central thrust of this Article, is that it goes a
step further in terms of jurisprudential analysis. The problem with the balancing act is two-
fold – first, it does not sufficiently define a compelling public or state interest, and second,
the lack of definition tends to leave the elected representatives as the best judges of
compelling public interests. Therefore, in the absence of a definition based on some principle,
the judicial determination of whether a particular public interest would override individual
liberty would invariably come down to the idiosyncrasies of the presiding Judge(s). A Judge
personally moved by the nature of infringement in question would invariably conclude that
no compelling public interest exists, while one not so moved would defer to the judgment of
the elected representatives as the custodians of public interest.

Naz Foundation marks the first leap at taking us out of this conundrum. By rejecting public
morality as a compelling state interest that could justify restraint of personal liberty, the High
Court places public morality in direct contrast to constitutional morality, which it describes as
being based on constitutional values. But how far constitutional values are themselves based
on or shaped by public morality is something that the High Court does not delve into.

The essence of the distinction between public and constitutional morality is that public
morality is merely a reflection of the moral and normative values of the majority of the
population (as expressed by the legislature), while Constitutional morality not only reflects
the majority’s values, but also shapes and changes them as part of the social engineering
aspect of our Constitution. Thus formulated, it follows that public morality and constitutional
morality are not mutually exclusive, but only have significant departure points. An example
of a point of departure between the two can be seen as the prohibition of untouchability, or
21
Naz Foundation v Govt of NCT Delhi & Ors 160 (2009) DLT 277 ¶ 80
22
1999 (1) SA 6 (CC).
23
Id at ¶ 130.

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the more general prohibition of discrimination on the ground of caste, religion, etc. On the
other hand, the two can be seen to converge in the treatment of gambling as res extra
commercium.24

This distinction between public and constitutional morality, as vague as it may be, is still
more scientific than the balancing act, which leaves you at the mercy of the idiosyncrasies of
the particular Judge, or the judgment of the legislature, which acts more in terms of political
considerations than on the basis of sound principles. And this is precisely where the
Constitutional importance of Naz Foundation lies.

24
It is possible to argue that the deprecation of gambling may not be a part of public morality at all, judging by
the sheer numbers that engage in it. It is important in this regard to bear in mind that actual engagement in
gambling is not necessarily reflective of the thought process of the actor with respect to its moral correctness. In
any case, its adverse impact on the actor’s family places the issue beyond the moral convictions of the actor.

8
 CONCLUSION

It is this writer’s argument that Naz Foundation is in fact a step in this direction of identifying
a principled basis for distinguishing between different kinds of morality. Nobody can argue
that criminal law has no role to play in regulating individual liberty in order to protect public
morality. The IPC is replete with offences that are fundamentally grounded in the protection
of public morality. The offence of bigamy, for instance, is rationalized as involving an
“outrage on public decency and morals” 25. To treat Naz Foundation’s rejection of public
morality as a violation of this principle is to misunderstand the essence of Naz Foundation.

Naz Foundation’s distinction between public and constitutional morality is nothing but a
distinction between morality that is in consonance with the values of the Constitution, and
morality that is not. The essence of Rawls’ or Dworkin’s arguments is also on similar lines,
i.e. State action for protection of public morality must show that it falls within the permitted
sphere of activity of the State, which the criminalization of homosexuality does not.

The most important observation in Naz Foundation in the context of gay rights is when it
declares that the Constitution of India recognizes, protects and celebrates diversity. This takes
the debate on gay rights beyond the tolerance paradigm, and brings it into the acceptance
realm, laying the ground-work for further grant of equal rights to the gay community, all on
the foundation stone of our newly discovered constitutional morality.

25
Per Cockburn, C.J. in R V. Allen, (1872) LR 1 CCR 367, 374-75, as cited in J.C. Smith & Brian Hogan,
Criminal Law, 666 (1983)

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 BIBLIOGRAPHY

• Statutes:

1. Constitution of India, 1950

2. Indian Penal Code, 1860

• Cases:

1. I.R. Coelho v. State of Tamil Nadu, (2007) 2 S.C.C. 1 (India)

2. Naz Foundation v. Government of NCT, 2009 (111) DRJ 1 (DB)
3. Gobind v. State of Madhya Pradesh, (1975) 2 S.C.C. 148 (India)
4. Lawrence v. Texas, 539 US 558 (2003).
5. Dudgeon v. UK, 45 ECHR (Ser. A) (1981).
6. Norris v. republic of Ireland, 142 ECHR (Ser. A) (1988)
7. The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, 1999
(1) SA 6 (CC).
8. R v. Allen, (1872) LR 1 CCR 367

• Books:

1. H.L Concept of Law (1961) The Morality of Law (1964).

2. Tony Honore, The Dependence of Morality on Law, 13 Oxford Journal Of Legal
Studies 1 (1993).

• Articles:

1. Bhargav K. Joshi and Neha Mary Koshy, Judicial Interpretation Of Article 21 In The
Naz Foundation Case: Privacy - A Moral Right Or A Creature Of An Amoral
Constitution? , NUJS Law Review, 2 NUJS L. Rev. 541 (2009).
2. Ronald Dworkin, The Moral Reading of the Constitution, The New York Review of
Books, (March 21, 1996), http://www.nybooks.com/articles/1996/03/21/the-moral-
reading-of-the-constitution/
3. Vikram Aditya Narayan, Matters of Morality, CALQ (2016) Vol. 3.1
http://docs.manupatra.in/newsline/articles/Upload/C3EC5295-0D4E-41F1-9CF3-
1FB4B1AE759F.1-a__constitution.pdf
4. Bhatia, Gautam, Equal Moral Membership: Naz Foundation and the Refashioning of
Equality (June 5, 2017). Available at SSRN: https://ssrn.com/abstract=2980862 or
http://dx.doi.org/10.2139/ssrn.2980862
5. J Sai. Deepak, The Constitutional Morality v Public Morality, The Daily Guardian,
https://thedailyguardian.com/constitutional-morality-versus-public-morality/
6. Nikhil Kumar Singhal, Naz Foundation v Govt of NCT Delhi-A critique, The
Practical Lawyer,http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=1&do_pdf=1&id=21220

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7. Arvind Narrain, A New Language of Morality: From the Trial of Nowshirwan to the
Judgment in Naz Foundation, 4 Indian J. Const. L, 84-104 (2010).

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